Town meeting action on medical marijuana moratorium a mixed bag

Edgartown voters approved a moratorium on medical marijuana, but tabled a ban on public use. — Photo by Ralph Stewart

At their annual town meetings earlier this month, voters in Edgartown, Oak Bluffs, and Tisbury acted differently on similar warrant articles aimed at restricting or delaying implementation of the new medical marijuana law.

In Tisbury, voters overwhelmingly approved an article that would ban medical marijuana use in any form in any place accessible to the public. That would include streets, sidewalks, parks, beaches, and public buildings.

But on the issue of the moratorium, there was plenty of debate. A clear majority favored a moratorium, but zoning bylaws require two-thirds approval. The final tally, 123 to 67, fell a few votes short of the required two-thirds majority.

The town is researching whether it has other options to restrict the location of any new dispensaries, according to Tristan Israel, chairman of the selectmen.

“I personally would not like to see a clinic on Main Street,” Mr. Israel said. “Say in Worcester or Boston, a clinic opens in a part of the town. While they may not want it, its impact would be far different than opening a clinic here. I hope we’re not going to turn into some kind of hip medical marijuana mecca. That’s not the image I want for the Island.”

Mr. Israel argued in favor of the moratorium on the town meeting floor, but he said this week that the measure might have only delayed the inevitable.

“I was disappointed, but actually, a year from now, had this passed, we might have been facing the same situation,” Mr. Israel said.

Close vote

In Oak Bluffs, a 79-42 standing vote on the moratorium issue fell just short of the required two-thirds approval. A switch of two votes would have meant the measure passed.

“I think I was surprised, but not surprised,” said selectman Mike Santoro, an Oak Bluffs business owner and a director of the Oak Bluffs Association, which represents business interests.

Without a moratorium, Mr. Santoro said, the town will have to face the impact of the law immediately. “It’s going to happen, and we have to deal with it sooner or later,” he said. “I’m anxious to get the final draft from the state so we can move forward and set up our own regulations. I want to get moving and create a zone where we want this to be, but I look at Oak Bluffs, where could we possibly put it?”

Mr. Santoro said one suggestion that is gaining support is a regional approach, with towns agreeing to locate a single dispensary at the Martha’s Vineyard Airport business park.

The law allows as many as five dispensaries in every county, and requires at least one facility.

Surprise, surprise

In Edgartown, the article proposing a ban on public consumption of marijuana came up early on the special town meeting warrant, which preceded the annual town meeting. Without debate, voters agreed to table the article indefinitely, a move that left some town officials surprised and confused.

“It surprised me,” said Michael Donaroma, chairman of the selectmen. “It doesn’t make sense. I haven’t heard anybody in favor of consumption in public places.”

Police now have clear authority to stop someone drinking alcohol in public, but there’s uncertainty whether they can stop someone from using medical marijuana on a town beach, park, or sidewalk.

In 2009, voters supported a state law decriminalizing possession of less than an ounce of marijuana. The maximum penalty for possession is a civil infraction and $100 fine.

While possession of any amount of marijuana, for any reason, is a clear violation of federal law, local and state police have no authority to enforce federal law.

With no debate, Edgartown voters approved a one-year moratorium on medical marijuana treatment centers or commercial growing facilities, the only Martha’s Vineyard town to approve a moratorium so far.

West Tisbury did not include an article asking voters to declare a moratorium, or ban public consumption, on its town meeting warrant.

Legal questions

On March 13, the Massachusetts Attorney General released two decisions on bylaws passed in the towns of Wakefield and Burlington. The attorney general has responsibility to review all local bylaws and ordinances and either approve or reject the town actions.

In November, 2012, just after the medical marijuana law won approval of voters statewide, town meeting voters in Wakefield approved a ban on medical marijuana treatment centers anywhere in the town. The attorney general ruled that the ban violates the law, and blocked enactment.

“We find that such a ban would frustrate the purpose of Chapter 369 of the Acts of 2012, ‘An Act for the Humanitarian Medical Use of Marijuana’ (enacted as Question 3 on the November 2012 state ballot), to allow qualifying patients, who have been diagnosed with a debilitating medical condition, reasonable access to medical marijuana treatment centers,” wrote Attorney General Martha Coakley in the decision sent to town leaders in Wakefield. “The Act’s legislative purpose could not be served if a municipality could prohibit treatment centers within its borders, for if one municipality could do so, presumably all could do so.”

Wakefield town leaders voted to appeal the attorney general’s decision.

Different approach

In the Burlington case, the attorney general approved a moratorium on medical marijuana treatment centers, approved at a January 28 town meeting.

“We approve this temporary moratorium because it is consistent with the town’s authority to impose reasonable time limitations on development, at least where those restrictions are temporary and adopted to provide controlled development while the municipality engages in comprehensive planning studies,'” Ms. Coakley wrote in the Burlington decision. “Such a temporary moratorium is clearly within the town’s zoning power when the stated intent is to manage a new use, such as medical marijuana treatment centers, and there is a stated need for ‘study, reflection and decision on a subject matter of [some] complexity.'”

The moratorium approved by the Edgartown town meeting voters on April 9 is identical to articles before many Massachusetts town meetings earlier this month. It was drafted with an eye toward winning approval from the attorney general, who is reviewing it now.

Rules and regulations

Supporters of a moratorium on medical marijuana dispensaries argued that towns needed to see the state regulations governing use, cultivation, and sale of medical marijuana before creating local bylaws.

The Massachusetts Department of Public Health, the state agency charged with creating the regulations, issued a 45-page draft of its proposed regulations on March 29.

DPH has committed to an ambitious schedule to get the regulations reviewed and approved. The agency scheduled public hearings in Plymouth, Boston, and Northampton on April 19. State regulators intend to vote on the final draft of the regulations on May 8, and if approved, they will take effect on May 24.

DPH recommended a definition of a debilitating medical condition that would qualify a patient for medical marijuana use. It defined a qualifying condition as “causing weakness, cachexia/wasting syndrome, intractable pain, or nausea, or impairing strength or ability, and progress to such an extent that one or more major life activities are substantially limited.”

The agency would define a 60-day supply, the amount the law allows for personal use, as up to 10 ounces, and limited the amount of time a doctor’s certification would be valid to no more than one year.

DPH said it recognized the significant concerns of pediatricians and law enforcement, by proposing more stringent restrictions for patients under 18 years old. The agency proposed requiring two doctors, including at least one pediatrician, to provide certification of a debilitating medical condition, require parental consent, and limit access only to youth with medical conditions that could cause death within six months, and where other treatments are ineffective.

Also recommended were limits on advertising and public communications, including claims of medical benefits without clear supporting evidence.